Console homebrew may not be illegal, European Court of Justice rules

The Court of Justice of the European Union has determined that in the circumvention of a console’s protection software is lawful, when the content so accessed is in itself lawful.

The ruling arose as part of a case brought by Nintendo against PC Box, which distributes software allowing unauthorised content on DS and Wii consoles – namely movies, videos and music. Nintendo alleged that PC Box’s software allowed for the use of pirated games, but PC Box adamantly objected to this claim.

The Court of Justice ruled today that PC Box’s offerings are not unlawful, because the content it enables is not itself unlawful. According to the court’s interpretation of existing law, PC Box would be in the wrong if it distributed equipment to get around copy or broadcast protection, enabling games to be pirated or otherwise illegally shared.

In a statement issued to the press via a press release, Nintendo said it will continue to battle its civil case against PC Box in the Milan Tribunal, which had passed this query to the CJEU.

“Since Nintendo only ever utilizes technological protection measures which are both necessary and proportionate to prevent widespread piracy of its intellectual property, and since the preponderant purpose of the circumvention devices marketed by PC Box is to enable piracy of legitimate video games, Nintendo is confident that the application of the guidance set out by the CJEU relating to proportionality will enable the Milan Tribunal to determine that the sale of circumvention devices is unlawful,” the company said.

“In the meantime, Nintendo maintains that the commercial dealings in circumvention devices infringe copyright laws as well as other intellectual property laws and Nintendo will continue to pursue those involved in the distribution of such devices.”